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March 6, 2015

March 5, 2015

Time for Full Investigations of Hillary Clinton | Commentary

By Kevin R. Kosar

Recent press revelations indicate that Hillary Rodham Clinton likely violated federal law by conducting State Department business via a personal email account. Both Congress and the State Department Inspector General’s Office should commence investigations.

The Washington Post shows this was no accidental goof. Clinton, or a member of her team, set up a private domain email account during her confirmation proceedings to become secretary of state. The New York Times reports that she never once used an official State Department account during her four years in the post. This is unacceptable.

Congress enacted the Federal Records Act in 1950. The objective was straightforward: to preserve records of government action for posterity and for public examination. In short, agencies preserve records of historical value, then transfer them to the National Archives and Records Administration, which makes them available to the public.

NARA has issued exacting guidance directing agencies how to discern records from non-records, including how to preserve the former and dispense with the latter. By law, responsibility starts at the top:

“The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.”

In the case of the State Department, that agency head was Clinton.

Nowhere in NARA’s email preservation guidance does it provide for any government employee, to say nothing of a cabinet head, to use a private email account and walk off with her work missives after leaving the position. On the contrary, all federal employees are obliged to: “review each message, identify its value, and either delete it or move it to a recordkeeping system.” While the guidance allows for incidental messages like spam and all-staff announcements to be deleted immediately, it makes clear that any “substantive policy discussions conducted in email” ought to be preserved for several years and ultimately transfer to NARA.

The law rightly provides for harsh penalties for removing federal records. Anyone who intentionally “conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing” covered under the law faces both fines and up to three years in prison.

The affair invokes another possible legal peril in the potential mishandling of classified information. Assorted federal laws and regulations govern how national security information is to be handled and protected. It is inconceivable that none of the tens of thousands of emails sent and received by Clinton transmitted classified information. The behavior detailed in press accounts is at odds with extensive regulations on how classified information must be safeguarded by government officials. Mishandling of classified information also carries serious penalties.

Clinton titled one of her books Living History. Both the State Department Inspector General’s Office, and Congress itself, should investigate to see if she compromised history by violating our nation’s records laws.

Kevin R. Kosar is the director of the governance project and a senior fellow at the R Street Institute, a free-market think tank in Washington, D.C.

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March 4, 2015

Rwanda’s Real Paul Kagame: a Strongman, Not a Statesman | Commentary

By David Himbara

Why are the world’s governmental, financial and media elites holding a long-term love affair with an authoritarian ruler who has been condemned time and again for human rights violations, including detaining and even “disappearing” his political opponents?

That is the question posed by Rwandan President Paul Kagame’s seemingly charmed life. While being lambasted by respected human rights advocates, he is lionized by global movers-and-shakers from Davos to the halls of Congress, to the White House.

In recent weeks, two respected watchdog organizations criticized Kagame’s increasingly repressive regime. In its annual evaluation of civil liberties around the world, Freedom House categorized the Central and East African nation as “not free.” Rwanda’s rating fell to six on a scale of 1 to 7 (with seven being the worst), a ranking shared with China, Cuba, Iran and Russia — not the company Western leaders want their friends to keep.

Meanwhile, Human Rights Watch reported, “… the [Rwandan] government continues to impose severe restrictions on freedom of expression and association and does not tolerate dissent … real or suspected opponents inside and outside the country continue to be targeted.”

Human Rights Watch hinted at what Kagame himself once said of his political opponents: “Many of them tend to die.” Among these opponents are former Intelligence Chief Patrick Karegeya, who was strangled in a hotel room in Johannesburg, South Africa, last year; Theogene Turatsinze, the former director of the Development Bank of Rwanda, whose body was found floating in a lake in Mozambique in 2012; dissident newspaper editor Charles Ingabire, who was shot to death in Kampala, Uganda, in 2011; and Andre Kagwa Rwisereka, deputy president of the opposition Democratic Green Party, who was decapitated and dumped in a river in Rwanda in 2010.

Last July, more than 40 bodies were found floating in Lake Wreru, downstream from Rwanda. Many of them had been packed in plastic bags, suggesting carefully conducted killings.

While dead bodies keep turning up in lakes, rivers and hotel rooms, Kagame continues to be invited to the most prestigious international gatherings. In January, just as the reports on his human rights record were being released, he addressed the World Economic Forum in Davos, Switzerland. The moderator of the panel on the Millennium Development Goals, Fareed Zakaria of CNN, said the Rwandan leader should be nominated for the Nobel Peace Prize for achieving “the biggest success story out of the [African] continent.”

Heady stuff, even for Kagame, who was an honored guest at the White House for a conference of African heads of state last August.

His “celebrity” status translates into substantial foreign assistance; in 2014, $777 million of Rwanda’s $2.4 billion budget came from outside the country’s borders.

In January alone, the United States announced that it would contribute $180 million to Rwanda, while the World Bank said it would provide $70 million. Addressing the Rwandan parliament, the International Monetary Fund’s managing director, Christine Lagarde, praised the country for “having overcome extraordinary adversity.”

Kagame’s friends and financial supporters cannot plead ignorance about his record. There is little in the latest reports from Freedom House and Human Rights Watch that the State Department itself did not acknowledge in its own 2013 report on Rwanda’s human rights record.

As the State Department declared: “The most important human rights problems in the country remained the government’s targeting of political opponents and human rights advocates for harassment, arrest and abuse; disregard for the rule of law among security forces and the judiciary; restrictions on civil liberties; and support of a rebel group in the neighboring Democratic Republic of the Congo (DRC).”

So then when will Western leaders wake up to Kagame’s abuses?

For this repressive ruler’s powerful patrons, it is time to ask: “Will the real Paul Kagame please stand up?” Is he the forward-thinking Davos-man or a tyrannical dictator? Is he a statesman/CEO or just another strongman? Is he really a paragon, or should his record make him a pariah?

Members of Congress, the administration and other Western leaders should read the reports by Freedom House, Human Rights Watch and the State Department. And then they should stop honoring him at prestigious events, stop bankrolling his brutality and start speaking out loud and clear against his record of repression that makes the Rwandan people prisoners and Western leaders hypocrites.

David Himbara is a former senior aide and economic adviser to President Paul Kagame of Rwanda.

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March 3, 2015

What Is All the Fuss About Campaign Coordination? | A Question of Ethics

Q. Some friends of mine who are lawyers were recently discussing a political corruption prosecution that they seemed to think was a big deal. I believe it involved some sort of campaign finance violations by the campaign manager of someone who ran for Congress a few years back. As a non-lawyer, it wasn’t clear to me what all the fuss was about. After all, people get prosecuted for political corruption all of the time. Are you aware of the case I’m describing, and, if so, what makes it such a big deal?

A. I believe I am. Last month, the Department of Justice announced a political operative named Tyler Harber pleaded guilty to crimes stemming from campaign finance improprieties in the 2012 federal election. The DOJ’s press release said, “This is the first criminal prosecution in the United States based upon the coordination of campaign contributions between political committees.”

OK, fine, but what does that mean?

To understand, it helps to review some background on campaign finance law and the types of committees that raise money for political spending. Candidates in congressional elections typically establish candidate committees to raise funds for their campaigns. The law imposes strict limits on the amount of money a candidate’s committee may receive from a given individual. Currently, for each election an individual may not contribute more than $2,600 to a candidate committee.

Corporations may not contribute at all. The idea is to prevent any single donor from currying undue influence over members of Congress by contributing large amounts of money to help them get elected.

While the Supreme Court allows these limits on contributions to candidate committees, it has struck down other limitations on political spending as violations of the First Amendment’s right to free speech. Notably, the law imposes no limits at all on an individual’s own expenditure of money to advocate the election of a particular candidate, so long as the expenditure is made independently of the candidate and the candidate’s committee. These are known as “independent expenditures.” While there is no limit on how much anyone may spend on an independent expenditure, individuals who make such expenditures must report them and disclose the sources of funds used for the expenditure.

The law also allows the formation of independent-expenditure-only political action committees, which are known as super PACs. There are no limits on the amounts of money super PACs may spend on advocating the election of a candidate or the amounts they may accept from any particular donor. The key, again, is they must not coordinate with a candidate or a candidate’s committee.

As you can see, a lot turns on what counts as “coordination.” According to federal law, a communication is coordinated if it is “made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee or their agents, or a political party committee or its agents.”

Which brings us to the Harber case. In 2012, Harber was the campaign manager for Republican Chris Perkins, who unsuccessfully challenged incumbent Virginia Democratic Rep. Gerald E. Connolly for his congressional seat. According to court documents, during the campaign Harber started a super PAC which, records show, was called National Republican Victory Fund. While serving as campaign manager for Perkins, Harber “made and caused” $325,000 in coordinated expenditure contributions from the super PAC to Perkins’ campaign committee.

After a wealthy donor made the maximum legal contribution to Perkins’ campaign committee, Harber directed the donor to contribute to the National Republican Victory Fund. The donor contributed $300,000, and Harber bought $325,000 in ads opposing Connolly’s re-election. Harber then took steps to cover up his involvement including lying about it to the FBI when the bureau interviewed him while investigating the matter in 2013.

He pleaded guilty to two offenses: making illegal coordinated contributions and making false statements to the government. His sentencing is scheduled for June, and for each offense, he faces up to five years in prison and fines up to $250,000. By pleading guilty and agreeing to cooperate with the government, Harber may of course receive a reduced penalty. But, his case is nevertheless a reminder that coordination is illegal. This may have been the first prosecution for coordination between campaign committees. But, it will not be the last.

C. Simon Davidson is an attorney with the law firm McGuireWoods. Submit questions to cdavidson@mcguirewoods.com. Questions do not create an attorney-client relationship. Readers should not treat his column as legal advice.

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Watch: Benjamin Netanyahu Addresses Congress

Israeli Prime Minister Benjamin Netanyahu addresses a joint meeting of Congress on security threats posed by “radical Islam” and Iran. Congress will reconvene at 10:45 a.m. for Netanyahu’s speech. Full story

Scheduling Loretta Lynch Vote Should be Top Senate Priority | Commentary

By Marcia D. Greenberger

When President Barack Obama nominated Loretta Lynch to be the attorney general of the United States last November, he started by listing her exceptional qualifications, from her academic achievements to the cases she tried as U.S. Attorney for the Eastern District of New York – prosecuting terrorists, investigating corruption and vindicating civil rights. He recounted her experiences in the civil rights movement as a little girl in North Carolina, the granddaughter of sharecroppers, perched on her father’s shoulders on the way to his church — experiences that nourished her dedication to the principles of fairness, equality and justice. He also noted that “Loretta might be the only lawyer in American who battles mobsters and drug lords and terrorists, and still has the reputation for being a charming ‘people person.’” The National Women’s Law Center supports her nomination, and the president’s remarks outlined the qualities that compelled us to do so.

Lynch’s hearing before the Senate Judiciary Committee last month confirmed every aspect of the president’s description. During her hours of testimony, she reiterated her fidelity to the rule of law. Her answers demonstrated her exceptional legal expertise, thoughtfulness, and sound judgment. She committed to building relationships with lawmakers and promised to listen to their concerns. Above all, she promised to be a fair and independent voice. In short, she promised to be Loretta Lynch.

Lynch’s background, qualifications, history and personal qualities not only qualify her to serve as the Attorney General of the United States but also suggest her service, once she is confirmed, will be exemplary. Dozens of individuals and organizations submitted letters in support of her nomination and continue to do so (as former New York City police commissioner Ray Kelly and the International Association of Chiefs of Police did just last week). Last Thursday, the Senate Judiciary Committee approved her nomination with bipartisan support. Even the witnesses called by Republicans at the second day of her Judiciary Committee hearing praised her record and reputation and recommended that she should be confirmed.

At long last, more than 100 days after Obama’s announcement, the Senate is finally ready to vote on this outstanding nominee.

This should go without saying, but given that the history of Loretta Lynch’s nomination to date suggests otherwise, I will say it:

Senate leadership should make scheduling a vote on an extraordinary nominee, who would be the first African-American woman to serve as the nation’s foremost law enforcement officer, a priority. And once that vote is scheduled, Senate Republicans should follow the lead of Sens. Orrin G. Hatch of Utah, Lindsey Graham of South Carolina, and Jeff Flake of Arizona, the Republican members of the Senate Judiciary Committee who approved Loretta Lynch’s nomination last week.

Marcia D. Greenberger is co-president of the National Women’s Law Center.

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February 27, 2015

The Iran End Game | Commentary

By Richard Klass

It is clear we’re approaching an end game in nuclear negotiations between six world powers — the P5+1 — and Iran. Final negotiating maneuvers have commenced. Secretary of State John Kerry has said there will not be another extension beyond March 31 unless a political framework is in place. Reports from Iran hold that President Hassan Rouhani’s position will be precarious if there is no agreement. And the word from Israel is that the country will use its full strength to prevent any agreement that does not meet its unreasonable demands — including Prime Minister Benjamin Netanyahu’s controversial address to the Congress on May 3.

If there is a negotiated agreement that is rejected, either in Congress or in Iran, it will be clear who bears the responsibility. But if no agreement is reached, it will matter greatly who is seen to be responsible. There is a good argument to be made that it is in the U.S. interest for any breakdown in negotiations to appear to be caused by Iranian intransigence.

How so?

If Iran walks away from the talks, Rouhani can claim to have stood up to “The Great Satan” and protected Iran’s civil nuclear energy program. That may be enough for him Iran’s new president to keep his job, and hold the IRGC and other hardliners at bay, and live to negotiate another day.

If the U.S. is seen as the cause of the negotiations failure, say, because Congress passes a bill requiring a contentious up-or-down vote on the agreement, the results are likely to be very different. Russia and China would surely move to increase commercial, and perhaps military, ties with Tehran. And our European partners, already planning trade ties, might soon follow suit. In short, the carefully constructed international sanctions regime would almost certainly weaken and possibly collapse. Severe strains might well develop within NATO at the same time unity on Ukraine is needed.

This would be even more true if Israeli objections were seen as the root cause, or if Congress was seen as acting on Israel’s behalf. Make no mistake — this issue goes beyond any perceived slight on the part of the Obama administration.Netanyahu’s proposed speech is dangerous.

And then what? In the aftermath of a failed deal, both sides will take a period of reassessment. Iran is unlikely to continue to accede to the current enhanced International Atomic Energy Agency inspections regime, so transparency will suffer immediately. Iran already retains the capability to develop nuclear weapons. In the event of a breakdown in negotiations, Iran’s nuclear program could shift from its current restrained state, to unfettered advancement. Limits on enrichment, centrifuges, and additional research and development would disappear. And without the support of our international partners, Iran would be free to move forward, to build a bomb if it so chooses, without the heavy burden of sanctions on its shoulders.

The path after a rejection of an Iranian nuclear agreement or of a failure to reach one is likely to be difficult, but just how difficult may depend largely on who is seen to have been responsible. The U.S. must hold strong with its negotiating partners, and should, under no circumstances, put itself in a position to have to argue against its own intransigence.

Retired Col. Richard Klass, is a graduate of the U.S. Air Force Academy, the National War College and Oxford University as a Rhodes Scholar. He flew more than 200 combat missions in Vietnam and served in the executive office of the president as a White House fellow. His awards include the Silver Star, Legion of Merit, Distinguished Flying Cross and Purple Heart. He is a member of the Board of the Center for Arms Control and Non-Proliferation.

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February 26, 2015

Presidential Hopefuls Skirt FEC Rules | Rules of the Game

Republican Wisconsin Gov. Scott Walker’s political organization is opening a campaign office for him in Iowa. Ex-Florida Gov. Jeb Bush is meeting with major donors and hosting dozens of fundraisers around the country. Hillary Rodham Clinton, former senator, secretary of State and first lady, is quietly hand-picking a team of high-level advisers to run her anticipated White House bid.

Yet none of these presidential hopefuls has officially declared their candidacy or even announced plans to test the waters of a White House run. That’s given them free rein to raise money through a crazy quilt of campaign-style committees, from tax-exempt issue groups to personal leadership political action committees, unrestricted super PACs, foundations and political organizations. Oversight is scant and disclosure spotty.

With only a couple of exceptions, the nearly 20 hopefuls eyeing the Oval Office are “likely violating” Federal Election Commission regulations that impose strict limits on candidates testing the waters of a White House bid, said Paul Ryan, senior counsel at the Campaign Legal Center and no relation to the congressman. Ryan recently published a white paper dubbed, “’Testing the Waters’ and the Big Lie: How Prospective Presidential Candidates Evade Candidate Contributions While the FEC Looks the Other Way.”

FEC guidelines state clearly that candidates testing the viability of a presidential bid may not collect corporate or union money, and must cap donations at $2,700 per election. Money used to test the presidential waters must also be publicly reported once a candidate officially declares. “They are ignoring federal campaign finance laws,” Ryan said of Walker, Bush and a long list of other candidates.

Until they officially declare their candidacies, the presidential hopefuls in the field run little risk of drawing attention from the FEC, which is stalemated by partisan divisions and has done little to enforce the rules lately. The candidates have said they are complying with campaign finance regulations.

Still, from Bush’s unrestricted super PAC, which reportedly has set out to raise $100 million by March 31, to the nonprofit advocacy group backing Republican Rick Santorum, the former senator from Pennsylvania, the diverse committees operated by this election’s 2016 White House hopefuls raise myriad legal and regulatory questions.

Take the global foundation set up by former President Bill Clinton. The charity’s work fighting AIDS, hunger and poverty has been overshadowed by recent reports it has accepted millions in contributions from corporations and foreign governments. The foundation halted most foreign contributions while Hillary Rodham Clinton served as secretary of State, to avoid the appearance of corruption and conflicts of interest. Should it do the same as she mulls a White House bid?

For all the bad press its foreign contributions have generated, the Clinton Foundation has voluntarily disclosed its contributions. The same cannot be said of the tax-exempt advocacy groups backing such presidential hopefuls as Santorum and former Arkansas Gov. Mike Huckabee, another Republican.

The nonprofit backing Santorum has the same name — Patriot Voices — as his leadership PAC. It was ostensibly set up to advance issues Santorum cares about, but is run by his former aides and largely promotes and publicizes his activities. America Takes Action, a tax-exempt social welfare group, similarly promotes Huckabee’s issues and agenda. Both groups may collect contributions of any size from any source, and operate outside the campaign disclosure rules.

And what about the unrestricted super PAC launched by Bush when he first signaled interest in a presidential campaign? Such PACs may collect unlimited donations as long as they don’t coordinate with the candidates they back. Bush is not yet a declared candidate, which explains why he is reportedly raising money for the group. But in the event Bush announces a candidacy, Ryan argues the PAC should be barred from spending money on his behalf.

As for Walker, his aides told U.S. News & World Report that his political organization, Our American Revival, is promoting “an issue environment and platform” for 2016 candidates, not testing the waters for Walker’s potential presidential bid. The organization, while it does disclose its receipts to the IRS, may accept unlimited contributions from any source.

GOP Sen. Marco Rubio of Florida is on a promotional tour sponsored by Sentinel, the Penguin Books subsidiary that published his book, “American Dreams.” The tour includes stops to sign books in Iowa and New Hampshire — a schedule that might raise questions if Rubio were a declared candidate.

In 2013, the Office of Congressional Ethics asked the full Ethics Committee to investigate whether then-Rep. Michele Bachmann’s book tour, paid for by the publisher of her book “Core of Conviction,” constituted an illegal in-kind contribution to her presidential campaign. The Ethics panel dropped the matter, but Bachmann remains under federal investigation amid various campaign finance allegations.

Only two White House hopefuls — Sen. Lindsey Graham, R-S.C., and former Sen. Jim Webb, D-Va. — have set up legitimate “testing the waters” committees that comply with FEC regulations, Ryan said. Graham’s “Security Through Strength” organization and Webb’s 2016 “Exploratory Committee” both accept contributions no larger than $2,700 per election.

“Sen. Graham and Sen. Webb appear to be complying with that requirement,” Ryan said. “And more than a dozen prospective presidential candidates appear to be ignoring it.”

Eliza Newlin Carney is a senior staff writer covering political money and election law for CQ Roll Call.

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2015 Is the Year to Put the Patient First | Commentary

By Alan Balch

President Barack Obama has rightfully been emphasizing the importance of “middle-class economics.” The middle class is the heart of America. But even as the economy picks up as our nation recovers from financial crisis, many hardworking families continue to struggle.

We at the National Patient Advocate Foundation believe any plan to rebuild our nation from “the middle out” must ensure that middle-class families are not subject to crippling medical debt — a problem that force millions of Americans to lose their health coverage, their homes, their good credit standing and their hard-won futures.

Medical emergencies are not predictable, therefore individuals and families are usually not prepared when they occur. Yet, when they strike, they quickly become all-consuming and often financially devastating. Today, more than 1 in 5 Americans under age 65 are having trouble paying medical bills. More than 60 percent of all bankruptcy filings now involve medical debt. And for the first time, the average cost of health care for the typical American family exceeds $22,000 annually.

Unexpected health care costs associated with significant conditions like cancer is putting a strain on middle-income Americans. Therefore, strengthening the middle class — and our nation as a whole — begins with ensuring access to care, while removing the looming shadow of financial hardship.

For nearly two decades our sister organization, the Patient Advocate Foundation, has battled for patient access to much needed care. To date, our case managers have provided direct services and support to more than 750,000 Americans facing chronic, debilitating and life-threatening illnesses. These patients come to us for help with a variety of issues related to their ability to access and afford recommended care. Each patient we help conveys a unique story of hardship and carries a deeply personal burden. When pieced together, these myriad tales — ranging from crippling medical debt to inadequate transportation to coverage denials — paint a startling picture.

Through our work in the trenches, we have a unique perspective on issues that touch the everyday lives of Americans.

In 2014, approximately 60 percent of PAF’s patient cases involved financial distress. This number demonstrates an unsettling theme that when it comes to health care, more often than not, our overall well-being is directly related to the depths of our pockets. Clearly we must do more to ensure affordable care to all. Policy initiatives that establish consumer protections for Americans facing debt, or far worse declaring bankruptcy, as a result of the cost of their medical treatment are an important first step.

America needs legislation that tangibly counteracts the disastrous effects of medical debt.

Congress can act quickly to assist middle-class patients by passing common-sense legislation that has enjoyed bipartisan support in years past.

Patients who are hit with an unexpected medical bill deserve an opportunity to settle their debt before it has a negative impact on their credit score. The Accuracy in Reporting Medical Debt Act has been introduced in three consecutive Congresses, and would allow patients a 120-day grace period to deal with debt collectors that contact them seeking payment on delinquent medical debt.

Patients who fully pay or settle a medical debt should not have their credit score harmed because of an event they could not control. Introduced in 2013, the Medical Debt Responsibility Act would prohibit a consumer reporting agency from making any report containing information related to a fully paid or settled medical debt, so patients can focus on getting healthy rather than worrying about their ability to secure housing, transportation, or credit.

Patients who are forced into bankruptcy because of medical debt deserve to move through the process as swiftly and painlessly as possible, so they can focus on their health. The Medical Bankruptcy Fairness Act of 2014 would have amended Title 11 of the United States Code to provide protection for medical debt homeowners, restore bankruptcy protections for individuals experiencing economic distress as caregivers to ill or disabled family members, and exempt from means-testing debtors whose financial problems were caused by serious medical problems.

These bills have enjoyed bipartisan support in the past, and would provide tremendous benefit to patients struggling with medical debt.

At some point, we are all patients. Therefore, lawmakers inherently understand the value of patient-centric reform. 2015 is a new year with a new opportunity to further improve our health care system. So let’s finally get back to basics and strengthen our health infrastructure for the people it is meant to serve: patients.

Dr. Alan Balch is CEO of National Patient Advocate Foundation.

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February 25, 2015

Back to Basics: Keep ‘Em Separated | Commentary

By Michael Boland

A prediction: Within a week, the president will sign an appropriations bill extending funding for the Department of Homeland Security.

Recently, a federal district court judge in Texas doused (but didn’t extinguish) the hottest populist political fire in America by finding the president violated federal procedural rules when the president issued the second of his two executive orders halting the deportation of undocumented persons. The Obama administration declared it would abide by the injunction and vowed to appeal to the 5th Circuit Federal Court of Appeals.

Just prior to the congressional recess, the Senate was unable to debate a House-passed funding bill for DHS because Senate Democrats filibustered the “motion to proceed” over objections to provisions in the House bill vacating the president’s two executive orders on immigration policy.

It is also a setback for the Republican “anti-amnesty” caucus in Congress. The judiciary has the legal issues now, and that’s as it should be.

The “anti-amnesty” caucus ought to release its hostage — funding for programs to combat terrorism within the United States — and let the courts do their job. After all, the primary claim against the legality of President Barack Obama’s executive orders is that he usurped the power of Congress. Only Congress can appropriate; they ought to do their job, not the job of the judiciary.

Interestingly, the judge declared that the president violated the 1946 Administrative Procedure Act, rules which control how the Executive Branch may propose and establish regulations and which established a process for the federal courts to review agency decisions. The judge did not rule on the constitutional issues presented by the plaintiffs, the attorneys general of 26 states.

Will the self-proclaimed “constitutionalists” inside the Congress recognize that this judge’s decision is a victory for their cause, resetting our three co-equal branches of government back within their separate boundaries?

This judge’s decision is also an opening for Senate Majority Leader Mitch McConnell of Kentucky to use a procedural reform initiated by then-Senate Majority Leader Harry Reid, D-Nev., to resolve the current Senate impasse peacefully.

In January of 2013, by a strong vote of 78-16 (with six not voting), the Senate adopted Senate Resolution 15, a rule applied only during the duration of the 113th Congress, to limit filibusters over the motion to proceed in order to allow the Senate to debate and vote upon a bill on its merits. Reid was the author of Senate Resolution 15. McConnell voted for it. Let’s call it “Reid’s rule.”

Today, we are five weeks into the 114th Congress, and Senate Resolution 15 expired in December.

McConnell, a master of Senate procedure, will revive Reid’s rule from two years ago, at least rhetorically, to change the attitude of the current Senate debate over whether to debate funding DHS for the balance of the current fiscal year.

Under Reid’s rule, the minority did not surrender its right to filibuster amendments on a bill or the final Senate passage of a bill; rather, the Senate structured itself to allow four hours of debate on a bill to proceed, with time equally divided, but disallowed the very filibuster battle Reid is waging today.

Will Reid now accept Reid’s rule?

Not incidentally, since the courts now have possession of the legal issues swirling around the president’s executive orders, it is also logical to foresee the current Senate voting to strike the House provisions blocking funding for the president’s executive orders at least as long as the judiciary’s injunction on those orders is in force.

If so, will the House pass the DHS bill without those provisions when it returns? By then, just days from today, the issue will change again.

Will the House shutdown funding for the domestic anti-terrorist agency now that the courts are in charge of the legal issues?

No.

Michael Boland is the principal and founder of Dome Advisors.

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Can Members of Congress Shill for Constituents? | Commentary

By Jason Katz

Critics, pundits and average Americans love, even relish, attacking members of Congress for being “in the pocket” of “special interests.” Media coverage is replete with veiled and not so veiled accusations about selling votes for campaign contributions or donations to a member’s “favorite charity.” There have been a few members through the years who have been tagged for such malfeasance.

Enter the phenomenon of a member of Congress shilling for actual constituents. Is that fair or foul? Is it ethical for a like-minded group in one congressional district to bring pressure on a member to vote and conduct their duties in one manner or another? Perhaps not, but what if it is openly on behalf on another nation? One that is decidedly not an ally of the U.S.

Enter Rep. Brad Sherman, D-Calif., for instance. I know Sherman and have for years. He is a fairly anonymous member and a fairly innocuous guy whom my former boss used to lovingly refer to as “the dweeb.” I even interviewed to be his district chief of staff, albeit so long ago, it was like another life. I do remember being a little disconcerted he seemed more interested in my ability to fundraise, rather than my expertise in public affairs or international relations.

Recently, a colleague sent me Sherman’s official and tax-payer funded email newsletter. The congressman’s newsletter began:

Dear Friend, I want to update you on my efforts to strengthen ties between the United States and Armenia. As a senior member of the House Committee on Foreign Affairs, I have focused on recognizing the Armenian Genocide, increasing aid to Armenia, Artsakh, and Javakh, and holding Azerbaijan accountable for its actions.

The headings comprised: Congressional Report on Armenia, Commemorating the 100th Anniversary of the Armenian Genocide, Telephone Town Hall Meeting — Tuesday, April 21, Calling for Permanent Display of Armenian Genocide Orphan Rug In November of 2014, the White House displayed the Armenian Orphan Rug in an exhibit entitled “Thank you to the United States: Three Gifts to Presidents in Gratitude for American Generosity Abroad” at the White House Visitors Center, Aid for Armenia and Artsakh and Holding Azerbaijan Accountable and Increased Assistance to Javakh.

I wasn’t aware that California’s 30th Congressional District was nearly monolithically Armenian and/or of Armenian descent. According to the congressman’s statistics in 2006-2008: White-43 percent, Latino-41.2 percent, African American-3.4 percent, Asian-10.2 percent. And Artsakh? I believe, and so officially does the rest of the world, including the United States, that is the Nagorno-Karabkah region of Azerbaijan that is internationally recognized as illegally occupied by Armenia. As for Javakh, it is a region within Georgia with compact Armenian minority and subject to territorial claims by some more radical Armenians. Actually, many Armenians in Javakheti region of Georgia as it is properly called, carry Russian passports – an eerie and, perhaps not entirely unintentional reminder of Moscow’s recently discovered favorite excuse for invasions.

So why would the Congressman’s newsletter, again at tax payer expense, be devoted exclusively Armenian issues? Why is any member so concerned with a foreign nation that has by anyone’s account, save their own, become a vassal state of the Russian Federation? In fact, Armenia recently turned away from the West by joining Mr. Putin’s Eurasian Customs Union — the counter to the European Union. Armenian borders and airspace are even patrolled by the Russian military. The Armenian president, Serge Sargysan, was recently quoted expressing his warm and fuzzy feelings toward his close ally Iran and the Mullahs. Further, why would a member of U.S. Congress go so far to offend not one, but two of America’s most important regional allies, Azerbaijan and Georgia?

So, really, Armenia is not an important nation to the U.S. Indispensable to the Iranians and Russians? Absolutely. That said, I assume Sherman has a significant Armenian-American community in his district. He should represent their interests — as long as those interests do not go directly against those of our nation as a whole.

This all begs a question I have posed for years: What is the responsibility of a member of Congress? Is it a member’s responsibility to his/her constituents, no matter the allegiances of those constituents? Or do members of Congress have a dual role … one to represent all of their constituents, not just a loud and boisterous and, yes, generous group, but also to represent the best interests of the United States of America?
Jason Katz is the principal of TSG, LLC, a consultancy that advises foreign governments, NGOs and corporations in the realms of strategic communications, politics and policy. He is also the former head of Public Affairs and Public Relations for the American Jewish Committee, based in Los Angeles.

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A Common-Sense Medicare Solution: Site-Neutral Payment Reform | Commentary

By Barry Brooks

Imagine this basic scenario: You are out of milk. You could go to your local convenience store and purchase a gallon for $3. But instead, you drive 25 miles to buy the identical gallon of milk for $5 at a large chain grocery store.

If this sounds absurd, that’s because it is. However it’s analogous to current health care payment policies that allow significantly higher reimbursements for health care services provided in certain settings, when identical, more convenient, and less expensive care in alternative settings exists.

After years of ostensibly trying to reign in unnecessary healthcare spending and maintain Medicare sustainability for future generations, misguided policies on site of service reimbursement have perversely been doing the exact opposite. Medicare continues to pay more for services provided in Hospital Outpatient Departments (HOPDs) ranging from blood work to radiology to chemotherapy administration while other doctors and facilities in the community providing the same services are paid far less. This unfortunate practice for Medicare has increased healthcare costs by billions and simultaneously forced more cost-efficient community providers into hospital settings, which drives costs higher still.

Earlier this month, we were pleased to see President Barack Obama’s FY2016 budget proposal recommend incentives to encourage the delivery of efficient care in the most appropriate ambulatory setting. In his proposal, the President states, “Evidence suggests that in recent years, billing of many ambulatory services has been shifting from physicians’ offices to the usually higher paid hospital outpatient department setting, increasing Medicare spending and beneficiary cost-sharing.”

The White House estimates this reform alone could save $29.5 billion over 10 years.

Under current Medicare policy, for example, a colonoscopy that costs $625 in the office setting is reimbursed more than double that amount – $1,383 – when performed in an HOPD. An MRI scan to diagnose or monitor a patient’s disease progression costs $600 at a community-based imaging facility, but totals $900 or more when conducted by an identical scanner in a hospital radiology suite.

It’s not just Medicare; this problem extends to private insurers as well. The National Institute for Health Reform studied private insurance claims of nearly 600,000 workers and found that increased HOPD spending is leading to overall spending growth among privately and publicly insured individuals because of higher prices charged by hospitals.

Most troubling of all, data reveals that these disparities adversely impact patients. Data from researchers at Milliman show that patients receiving cancer treatments in HOPDs spend $650 more in out-of-pocket copayments compared to patients receiving community-based cancer care.

The negative result of these policies goes beyond the fiscal impact. Particularly in rural areas, many patients are losing access to their trusted healthcare providers due to closure and consolidation of community-based healthcare centers as they are forced to join hospitals. This trend is directly attributable to lower reimbursements for physician-run healthcare practices. Since 2008, 313 independent cancer centers have closed their doors and 544 have entered into contractual relationships with larger hospital centers merely to keep their doors open.

Closures are only one troubling byproduct of payment disparities. Another is the perverse higher reimbursement incentive that encourages hospitals to buy up physician practices in order to increase their profits. They buy the practice, change the name on the door and double the prices. While the hospitals win, everyone else loses. Unfair payment policies have put independent physician practices nationwide in a position in which selling to hospitals is their only option.

The solution is clear — neutralize payments across sites of service. Pay the same fee for the same service regardless of where it is performed. This policy reform has the bipartisan support of lawmakers, the Medicare Payment Advisory Commission and a broad group of health care stakeholders including providers, insurers and consumers.

To advance such reforms in cancer care, Congress should adopt a policy to secure site-neutral payments to keep costs down for seniors fighting cancer, Medicare and taxpayers. Specifically, Congress should create a level playing field in Medicare payments for outpatient cancer-care services. This would preserve patient access to high-quality, cost-effective care in the community setting and help stem the tide of hospital acquisitions of community cancer clinics.

As Obama and bipartisan leaders in Congress call for the delivery of efficient care in the most appropriate setting, we urge them to advance policy changes to establish parity across sites of service in health care. We owe our patients, taxpayers and the nation’s health care system common sense solutions that protect patient choice and reduce costs.

Barry Brooks, M.D., is chairman of the Pharmacy & Therapeutics Committee at The US Oncology Network.

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February 24, 2015

K Street Donors Make Early White House Picks | K Street Files

They’re not billionaire industrialists poised to bankroll millions in the 2016 campaign, but K Street still matters to the crop of aspiring presidential candidates.

Lobbyists are tapping long-established networks of donors to help their favored White House contenders rack up early money.

Full story

Keystone Process Tells Tale of Two Houses | Procedural Politics

(Tom Williams/CQ Roll Call File Photo)

Boehner signs the Keystone bill. (Tom Williams/CQ Roll Call File Photo)

Do you remember Senate Republican Leader Mitch McConnell of Kentucky and House Majority Leader Kevin McCarthy of California promising last fall to return the new Congress to the regular order? The initial test came on the first major bill in the well of both houses, the Keystone XL Pipeline Act. Whereas the Senate produced a veritable gusher of amendments with all hands at the wellhead, the House reverted to a narrowly-constricted flow tube controlled by a few valve masters.

Identical House and Senate pipeline bills were introduced on the opening day of the new Congress by two North Dakota Republicans, Rep. Kevin Cramer and Sen. John Hoeven. Both measures were placed on a fast track to the floor the first week of the session. But that’s where the similarities ended. Full story

Congress Should Protect the Arctic National Wildlife Refuge | Commentary

By Steve Barker

Recently, Interior Secretary Sally Jewell traveled to Northwest Alaska to discuss multiple public lands issues, including President Barack Obama’s recent recommendation that Congress protect the Arctic National Wildlife Refuge as wilderness, the highest level of conservation protection possible for America’s public lands. ANWR is one of the most pristine and beautiful places on Earth. The recommended protections ensure this area will continue to provide wild and remarkable recreation opportunities that inspire our businesses and consumers. And while many more Americans will have the opportunity to visit the Grand Canyon or Yosemite, ANWR stands on equal ground with these spectacular, long-protected areas.

Natural resource leaders recognize the wisdom of the administration’s move. Former Deputy Interior Deputy Secretary David Hayes stated, “This is a day many of us have fought for and worked for, and it’s an important step on the road to the more balanced natural resources policy we so desperately need.”

The outdoor recreation economy depends on getting people outside, which in turn means conserving and protecting public lands for activities such as camping, trail sports, snow sports, bicycling, water sports, hunting, fishing and wildlife viewing. Each year, the outdoor industry supports more than 6 million American jobs, generates $646 billion in direct consumer spending and contributes $80 billion in federal, state and local taxes. In Alaska, outdoor recreation generates $9.5 billion in consumer spending, supports 92,000 jobs and generates $711 million in state and local tax revenue.

Over the past several years, I have taken more than 24 industry executives on trips north of the Brooks Range and into ANWR. We have rafted wild rivers, fished for Arctic char and seen polar bears, brown bears, wolves and musk ox. We have watched the wildlife spectacle of thousands of caribou moving past our camps as they migrate to their calving grounds on the coastal plain. Without exception, each one of us regarded the trip as a life-changing experience and has devoted time and resources to protecting recreation assets like this one for our grandchildren.

As business leaders, the health of our industry depends on land and water that are protected for people to enjoy America’s beautiful natural landscapes, pursue healthy and active lifestyles and use our products to have the best experience possible. The president’s proposal meets those goals.

This is the first wilderness protection any president has recommended to Congress for a refuge since 1974. Besides providing home to polar bears, caribou and birds that migrate from six continents, the Arctic Refuge is home to and provides sustenance for the Gwich’in people. By offering protection of this ecosystem and tourism destination, Obama and Jewell have done the right thing, and I thank them. Preservation of ANWR is far more than a conservation legacy opportunity, it is a gift to all Americans for generations to come.

Steve Barker is interim executive director of the Outdoor Industry Association.

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February 23, 2015

Solving the Password Problem | Commentary

By Michael Jones

Cybercrime is metastacizing. Hackers stole 900 million financial and personal records in 2014 alone, and hacking now costs consumers and companies $375-575 billion annually. That’s putting pressure on both parties to act, but Congress hasn’t yet been able to pass a cybersecurity bill. President Barack Obama’s proposal to require businesses to share information on hacking threats with the Department of Homeland Security has raised both political and privacy issues, and drawn opposition from conservatives, business and the American Civil Liberties Union.

But even if such a bill passed, information sharing would not have stopped high-profile cyberattacks on Anthem, Sony Pictures, Target, Home Depot, banks in 30 countries including JP Morgan Chase, or others. The glaring cybersecurity problem today is our password practices, which have become dysfunctional. Most security breaches involve weak or stolen login credentials.

Passwords are a weakness for Congress’ own cybersecurity, too. According to Rep. Jim Langevin, D-R.I., co-chairman of the Congressional Cybersecurity Caucus, the number of daily cyberattacks on congressional networks is “huge.” Congressional staff computers have sophisticated firewalls, but even the best technologies can’t protect them against bad practices of humans, such as password reuse and sharing. Recently, the House started requiring regular password changes and instituted mandatory information security training for any staffer with a House network user name and password.

Some, such as bank and insurance regulator Benjamin Lawsky, superintendent of the New York State Department of Financial Services, propose scrapping the password system altogether. But there is a way to fix it.

Passwords originated half a century ago, when a few research institutions had one precious computer, and the few people who had access to it needed just one keyword to remember. Today, hundreds of millions of us have dozens of accounts each. In an effort to make billions of passwords distinct and safer from hackers, we’re making them more and more complex and less and less memorable.

The less memorable passwords are, the less secure they are. Continually resetting passwords we can’t remember makes us more vulnerable. So does storing them on a computer or in a drawer. One place they are safe from hackers is stored in your brain, provided you can get them out when you need them.

My field of memory research has learned much about how humans encode, store and retrieve information committed to memory. It has evolved excellent computer simulation models that predict how likely a person is to recall information, and can help select words that are optimal for later recall by specific people.

That’s useful for data security engineers, and I’m now collaborating with one to build a new password system. It draws on decades of lab research on optimizing human memory, much of it funded by federal agencies such as the National Science Foundation. The new system will have the ubiquitous “password strength” meter, but also a “memorability” meter. It will generate memorable combinations of words that are personally relevant and meaningful for users, but appear random to anyone else, making them memorable and much harder to steal.

Besides passwords, there are other intractable cybersecurity problems that scientists who study human psychology and behavior can help solve. For example, spam/phishing filters mechanically search for suspicious individual key words, but not for typical spam narratives, so spam slips the net and lands in your inbox. Algorithms designed to resolve disputes between online buyers and sellers can’t distinguish between “liar buyers” with a bogus complaint and truthful ones with a legitimate complaint. Applying models from linguistics, memory and cognitive science, and teaching computers how to comprehend patterns of meaning rather than just pick out words or numbers, can help make these structures smarter and more secure.

This field of teaching computers to think more like humans is called cognitive computing. It has been incubating for about a decade now, and is likely to generate big breakthroughs that we’ll all be using before long, including better passwords, and many new ways to find meaning in the torrent of digital data rapidly headed our way.

Lab research into human cognition is directly enabling advances in cognitive computing, which can help stem the rising tide of cybercrime, and help make the benefits of the Big Data revolution available and meaningful for everyone. That makes it a smart investment for taxpayers. Whether or not Congress can pass an information-sharing bill, if it wants to do something effective about cybersecurity, it can fund this research.

Michael Jones, PhD, is Associate Professor of Psychology, Cognitive Science, and Informatics at Indiana University.

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